COVID-19 and residential possession claims

On 18 March 2020 the government issued a press release stating that all evictions for social and private tenants are prohibited for three months. The government was concerned that as peoples’ livelihoods were threatened they would not be able to afford their rental or mortgage payments. On 27 March 2020 the government introduced the Coronavirus Act 2020 to clarify the position. Section 81, Schedule 29 deals with possession claims for private and social renters and essentially imposes a moratorium on residential evictions for a period of 90 days from 27 March 2020. This new temporary regime was to apply to Housing Act and Rent Act tenancies. There were some gaps in the legislation and at the time of writing this article, some three weeks later, there has just been a new amendment to the Practice Direction to attempt to address some teething problems.

What is the position if you have already served a termination notice, can you issue proceedings during the stay period?

Notices served before the legislation came into force on 27 March 2020 are still effective but the courts had, it seemed, taken a varied approach to issuing court proceedings which are based on those notices. There were rumours that some courts were not issuing and were putting all applications to one side. The new amended PD 51Z that came into effect on 18 April 2020 clearly states that proceedings can be issued but, from 27 March 2020, all actions will be suspended for 90 days. This means that neither cases currently in the system or about to be issued, will be allowed to proceed to the stage where a tenant can be evicted. This suspension will last for 90 days (to 30 June 2020) initially with the ability for the government to extend, if needed. These provisions apply to private and social renters in England and Wales and to those with mortgages and licenses under which the Protection from Eviction Act 1977 applies.

The restrictions do not apply to possession claims against trespassers or those who have remained in occupation following the termination of a licence or a common law tenancy. PD 51Z provides that claims for injunctive relief are not subject to the stay on possession. It appears that it may therefore still be possible to obtain injunctive relief against trespassers or in a very serious situation concerning for example anti-social behaviour.

What is the position with new termination notices post-Coronavirus Act?

All new notices (served post-Coronavirus Act coming into force) have to give the tenant at least three months’ notice, rather than two months. This applies to notices under the Housing Acts and Rent Acts, including notices under s8 of the Housing Act, which under normal circumstances can sometimes be acted on after two weeks’ notice.

What about late payers?

Late payers will take advantage of this government imposed hiatus but what happens to the tenant who has genuine difficulty paying because he might have lost his job? In the case of the former, landlords could consider taking some kind of debt recovery action to recover rent. There are currently no restrictions on serving a statutory demand followed by issuing a bankruptcy petition (if that is really what a landlord needs to do but, there are difficulties in that process too) or issuing a debt claim and seeking to enforce a judgment. In a scenario where the tenant genuinely cannot pay, the landlord is encouraged to engage with his tenant to find a solution and perhaps agree a deferred payment plan.

If landlords or tenants are unsure of their rights, they should take specialist legal advice. For more information please contact Bernard D’Monte or Simon Painter.